D.O. et al v. Commonwealth of Kentucky Cabinet for Health and Family Services et al

Filing 7

MEMORANDUM OPINION AND ORDER: (1) The 2 and 3 Motions to Dismiss Dft Steven Beshear, in his official capacity as Governor of the Commonwealth of Kentucky and Dft Jack Conway, in his official capacity as Atty General for the Commonwealth of Kentucky are GRANTED. (2) The claims asserted in this action against Dfts Beshear and Conway are DISMISSED, with prejudice. Signed by Judge Danny C. Reeves on March 25, 2015. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
D.O., et al.,
Plaintiffs,
V.
STEVE BEASHEAR, in his Official
Capacity as Governor of Kentucky, et al.,
Defendants.

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Civil Action No. 5: 15-048-DCR

MEMORANDUM OPINION
AND ORDER

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The plaintiffs to this action include two minor children (designated as “D.O.” and “A.O.”)
and the children’s great aunt (designated as “R.O.”). The plaintiffs allege that the children were
victims of parental neglect and abuse and were removed from the care of their parents under state
law. They further allege that they have been denied foster care maintenance payments due under
the Social Security Act in violation of the Fourteenth Amendment to the United States
Constitution.1 The plaintiff seek both declaratory and injunctive relief.
The Complaint that was originally filed in the Fayette Circuit Court named the
Commonwealth of Kentucky, Cabinet for Health and Family Services, as the only defendant.
[Record No. 1-1] However, on February 6, 2015, the state court granted the plaintiff’s motion
to amend their Complaint to include the Governor and Attorney General of the Commonwealth
of Kentucky as additional defendants based on their alleged failures to interpret, execute, and
1

The attorney filing the action on behalf of the three plaintiffs asserts that he was appointed guardian
ad litem for the two children.

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enforce the applicable laws and regulations. The plaintiffs also named Audrey Tayse Hayes, in
her official capacity as Secretary for the Cabinet for Health and Family Services, based on claims
that Hayes is charged under state law with the enforcement of child protection and family
support programs. The action was removed to this Court on February 25, 2015. [Id.]
The matter is currently pending for consideration of motions to dismiss the claims
asserted against Defendants Steve Beashear and Jack Conway. [Record Nos. 2 and 3] Both
defendants assert that the claims asserted against them in their official capacities as Governor
and Attorney General of the Commonwealth of Kentucky, respectively, should be dismissed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because they are not proper
parties who may be sued for injunctive relief under the exception to immunity recognized in Ex
parte Young, 209 U.S. 123 (1908). See also Edelman v. Jordan, 415 U.S. 651 (1974), and
Children’s Health Care Is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1415-18 (6th Cir. 1996).
[Record No. 2-1, p. 2-3, and Record No. 3-1, p. 4-5]2 More specifically, the defendants note that
the Amended Complaint does not allege that either state officer has taken action (as opposed to
inaction) which would constitute an exception to Eleventh Amendment immunity. As the
Governor points out in his memorandum, while he has authority to appoint certain officials
within the Cabinet, that authority does not extend to imposing his will on actions taken by

2

Both defendants acknowledge that Audrey Tayse Haynes, in her official capacity as Secretary for the
Cabinet for Health and Family Services (hereafter, the “Cabinet”), is a proper party to this action because the
Cabinet is the agency of state government responsible for administering foster care maintenance payments
which the plaintiffs claim have been denied.

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Cabinet. Likewise, the Attorney General asserts that he has no authority regarding monetary
payments under the federal Social Security Act.3
In their responses to the motions to dismiss, the plaintiffs concede that: (i) neither the
Governor nor the Attorney General have direct responsibility for or involvement with the
administration of foster care maintenance payments; and (ii) the exception to immunity
recognized by federal law does not apply to the Governor or the Attorney General under the facts
alleged in Amended Complaint. Notwithstanding these concessions, the plaintiffs assert that
both may become necessary parties to ensure enforcement if this Court enters a judgment in their
favor. Therefore, they ask that dismissal of the defendants be without prejudice.
Based on the foregoing, it is clear that the claims asserted against Defendants Beshear and
Conway should be dismissed. Additionally, this dismissal will be with prejudice. In the event
a judgment is ultimately entered in favor of the plaintiffs, they will have other mechanisms of
enforcement against the appropriate state official(s). However, while they must comply with
orders in cases in which they are parties, neither the Governor nor the Attorney General are
responsible for enforcing the decisions of this Court with respect to the issues raised in the
plaintiffs’ Amended Complaint. Accordingly, it is hereby
ORDERED as follows:
1.

The motions to dismiss filed by Defendant Steven Beshear, in his official capacity

as Governor of the Commonwealth of Kentucky, and Defendant Jack Conway, in his official

3

The Attorney General makes other arguments in support of his motion to dismiss. [See Record No.
3-1, pp. 6-8] However, in light of the plaintiffs’ concessions, it is not necessary to address these additional
grounds for dismissal at this time.

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capacity as Attorney General for the Commonwealth of Kentucky [Record Nos. 2 and 3] are
GRANTED.
2.

The claims asserted in this action against Defendants Beshear and Conway are

DISMISSED, with prejudice.
This 25th day of March, 2015.

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